Amicus Curiae Brief — Donald J. Trump, Petitioner v. Norma Anderson, et al.



No. 23-719

In the Supreme Court of the United States

DONALD J. TRUMP,

Petitioner,

V.

NORMA ANDERSON, ET AL.,

Respondents.

——————

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF COLORADO

BRIEF OF AMICI CURIAE STATES OF

INDIANA, WEST VIRGINIA, TWENTY-THREE

OTHER STATES, THE ARIZONA LEGISLATURE,

AND THE LEGISLATIVE LEADERSHIP OF NORTH

CAROLINA IN SUPPORT OF PETITIONER

PATRICK MORRISEY

Attorney General

MICHAEL R. WILLIAMS

Principal Deputy Solicitor

General

DAVID E. GILBERT

Deputy Attorney General

OFFICE OF THE WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

(304) 558-2021

michael.r.williams@wvago.gov

THEODORE E. ROKITA

Attorney General

JAMES A. BARTA*

Solicitor General

MELINDA R. HOLMES

Deputy Attorney General

OFFICE OF THE INDIANA

ATTORNEY GENERAL

IGC South, Fifth Floor

302 Washington Street

Indianapolis, IN 46204

(317) 232-0709

James.Barta@atg.in.gov

* Counsel of Record

Counsel for Amici Curiae

Additional counsel listed with signature block

i

QUESTION PRESENTED

Did the Colorado Supreme Court err in ordering

President Trump excluded from the 2024 presidential

primary ballot?

ii

TABLE OF CONTENTS

INTRODUCTION AND INTERESTS OF

AMICI CURIAE ........................................................... 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 3

I.

Section 3 cannot be used to disqualify a person

from holding office unless Congress first acts ..... 3

II. Without more direction from Congress, courts

cannot say what constitutes “insurrection”

under Section 3...................................................... 8

III. Allowing state courts to apply Section 3 to

Presidents without congressional action

would damage our system of government .......... 17

CONCLUSION .......................................................... 25

iii

TABLE OF AUTHORITIES

CASES

Anderson v. Celebrezze,

460 U.S. 780 (1983) ............................... 20, 23, 24

Baker v. Carr,

369 U.S. 186 (1962) ........................................... 22

Benisek v. Lamone,

138 S. Ct. 1942 (2018) ....................................... 24

Burroughs v. United States,

290 U.S. 534 (1934) ........................................... 19

Bush v. Gore,

531 U.S. 98 (2000) ........................................... 1, 2

Cale v. City of Covington,

586 F.2d 311 (4th Cir. 1978) ............................... 7

Case of Fries,

9 F. Cas. 924 (C.C.D. Pa. 1800) ........................ 14

Castro v. N.H. Sec’y of State,

No. 23-CV-416-JL, 2023 WL 7110390

(D.N.H. Oct. 27, 2023) ......................................... 6

Cawthorn v. Amalfi,

35 F.4th 245 (4th Cir. 2022) ............................... 4

In re Charge to Grand Jury,

62 F. 828 (N.D. Ill. 1894) .................................. 13

iv

CASES [CONT’D]

Civil Rights Cases,

109 U.S. 3 (1883) ................................................. 7

Colegrove v. Green,

328 U.S. 549 (1946) ........................................... 18

Cook v. Gralike,

531 U.S. 510 (2001) ........................................... 24

Cousins v. Wigoda,

419 U.S. 477 (1975) ........................................... 23

Davis v. Burke,

179 U.S. 399 (1900) ................................... 7, 8, 13

Dep’t of Homeland Sec. v. New York,

140 S. Ct. 599 (2020) ........................................ 25

Dubin v. United States,

599 U.S. 110 (2023) ........................................... 10

Freytag v. Comm’r,

501 U.S. 868 (1991) ............................................. 3

Gill v. Whitford,

138 S. Ct. 1916 (2018) (No. 16-1161) ................ 22

In re Griffin,

11 F. Cas. 7 (C.C.D. Va. 1869) ............................ 4

Grinols v. Electoral Coll.,

No 2:12-CV-02997, 2013 WL 2294885

(E.D. Cal. May 23, 2013) ................................. 5, 6

v

CASES [CONT’D]

Herndon v. Lowry,

301 U.S. 242 (1937) ........................................... 14

Home Ins. Co. of N.Y. v. Davila,

212 F.2d 731 (1st Cir. 1954).............................. 14

Japan Whaling Ass’n v. Am. Cetacean Soc’y,

478 U.S. 221 (1986) ............................................. 8

Jarecki v. G. D. Searle & Co.,

367 U.S. 303 (1961) ........................................... 10

Kerchner v. Obama,

669 F. Supp. 2d 477 (D.N.J. 2009)...................... 4

Keyes v. Bowen,

117 Cal. Rptr. 3d 207 (Cal. Ct. App.

2010) .................................................................. 24

Kneedler v Lane,

45 Pa. 238 (1863) ............................................... 11

Lamb v. Obama,

No. S-15155, 2014 WL 1016308 (Alaska

Mar. 12, 2014) ................................................... 19

Lin v. United States,

539 F. Supp. 2d 173 (D.D.C. 2008) ..................... 9

Luther v. Borden,

48 U.S. 1 (1849) ................................................... 9

M’Culloch v. Maryland,

17 U.S. 316 (1819) ....................................... 17, 18

vi

CASES [CONT’D]

Martin v. Hortin,

64 Ky. 629 (1867)............................................... 13

Martin v. Hunter’s Lessee,

14 U.S. 304 (1816) ....................................... 17, 18

Martin v. Mott,

25 U.S. 19 (1827) ........................................... 9, 16

McDonnell v. United States,

579 U.S. 550 (2016) ........................................... 10

Miller v. United States,

78 U.S. 268 (1870) ............................................. 12

Ex parte Milligan,

71 U.S. 2 (1866) ........................................... 13, 14

In re Moyer,

85 P. 190 (Colo. 1904)........................................ 15

Nixon v. United States,

506 U.S. 224 (1993) ..................................... 20, 25

Oregon v. Mitchell,

400 U.S. 112 (1970) ..................................... 19, 23

Ownbey v. Morgan,

256 U.S. 94 (1921) ............................................... 7

Pac. States Tel. & Tel. Co. v. Oregon,

223 U.S. 118 (1912) ........................................... 25

vii

CASES [CONT’D]

Pan Am. World Airways, Inc. v. Aetna Cas.

& Sur. Co.,

505 F.2d 989 (2d Cir. 1974)............................... 13

Powell v. McCormack,

395 U.S. 486 (1969) ............................................. 6

Purcell v. Gonzalez,

549 U.S. 1 (2006) ........................................... 2, 24

Robinson v. Bowen,

567 F. Supp. 2d 1144 (N.D. Cal. 2008) ............... 6

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) ....................................... 21

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ......................................... 8

Spruill v. N.C. Mut. Life Ins. Co.,

46 N.C. 126 (1853) ............................................. 13

State v. McDonald,

4 Port. 449 (Ala. 1837) ...................................... 13

Stewart v. Kahn,

78 U.S. 493 (1870) ............................................... 9

Stinson v. N.Y. Life Ins.,

167 F.2d 233 (D.C. Cir. 1948) ......................... 8, 9

Storer v. Brown,

415 U.S. 724 (1974) ........................................... 25

viii

CASES [CONT’D]

Strunk v. N.Y. State Bd. of Elections,

No. 6500/11, 2012 WL 1205117 (N.Y.

Sup. Ct. Apr. 11, 2012) ...................................... 19

Taitz v. Democrat Party of Miss.,

No 3:12-CV-280, 2015 WL 11017373

(S.D. Miss. Mar. 31, 2015) .................................. 6

Town of Chester v. Laroe Ests., Inc.,

581 U.S. 433 (2017) ........................................... 22

Trs. of Dartmouth Coll. v. Woodward,

17 U.S. 518 (1819) ............................................. 18

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ....................................... 6, 19

United States v. Greathouse,

26 F. Cas. 18 (C.C.N.D. Cal. 1863) ................... 16

United States v. Hammond,

26 F. Cas 99 (C.C.D. La. 1875) ......................... 12

United States v. Matchett,

837 F.3d 1118 (11th Cir. 2016) ........................... 8

United States v. Mitchell,

2 U.S. 348 (C.C.D. Pa. 1795) ............................. 14

Vieth v. Jubelirer,

541 U.S. 267 (2004) ..................................... 21, 22

ix

CASES [CONT’D]

Ex parte Virginia,

100 U.S. 339 (1879) ............................................. 7

Voeltz v. Obama,

No. 2012-CA-02063, 2012 WL 4117478

(Fla. Cir. Ct. Sep. 6, 2012) .............................. 6, 7

Ware v. Hylton,

3 U.S. 199 (1796) ................................................. 8

Younis Bros. & Co. v. CIGNA Worldwide

Ins. Co.,

91 F.3d 13 (3d Cir. 1996) .................................. 14

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XII............................................. 5

U.S. Const. amend. XIV, § 3..................... 3, 8, 10, 20

U.S. Const. amend. XIV, § 5............................... 3, 15

U.S. Const., amend. XX ............................................ 5

U.S. Const. amend. XXV .......................................... 5

U.S. Const. art. I, § 2 .......................................... 5, 19

U.S. Const. art. I, § 3 .......................................... 5, 19

U.S. Const. art. I, § 4 ........................................ 18, 19

U.S. Const. art. I, § 8 ........................................ 10, 15

U.S. Const. art. I, § 12 ............................................ 15

x

STATUTES

10 U.S.C. § 254 ....................................................... 16

Act of February 28, 1795, ch. 36, 1 Stat. 424,

10 U.S.C. § 332 ............................................ 12, 16

Act of July 13, 1861, ch. 3, 12 Stat. 255................. 16

Act of July 29, 1861, ch. 25, 12 Stat. 282............... 16

Act of May 2, 1792, ch. 28, 1 Stat. 264 .................. 16

Insurrection Act of 1807, ch. 39, Pub. L. No.

9-2, 2 Stat. 443 .................................................. 12

N.Y. Code of Crim. Proc., ch. 4, § 97 (Weed,

Parsons & Co, 1850) .......................................... 16

OTHER AUTHORITIES

2 Debates on the Federal Constitution (J.

Elliot ed. 1876) .................................................... 6

4 William Blackstone, Commentaries on the

Laws of England ............................................... 11

166 Cong. Rec. S938 (daily ed. Feb. 5, 2020) ......... 19

167 Cong. Rec. S733 (daily ed. Feb. 13,

2021) .................................................................. 19

Alexis de Tocqueville, Democracy in

America (Harvey C. Mansfield & Delba

Winthrop eds. & trans., Univ. of Chi.

Press 2000) (1835) ............................................. 22

xi

OTHER AUTHORITIES [CONT’D]

Amul R. Thapar & Joe Masterman, Fidelity

and Construction, 129 Yale L.J. 774

(2020) ................................................................. 17

Andrew Johnson, U.S. President, Message

Proclaiming End to Insurrection in the

United States (Aug. 20, 1866)........................... 16

Antonin Scalia & Bryan Garner, Reading

Law (2012) ........................................................... 8

B. Mitchell Simpson, Treason and Terror: A

Toxic Brew, 23 Roger Williams U.L. Rev.

1 (2018) .............................................................. 14

Cong. Globe, 39th Cong., 1st Sess. 2898

(1866) ................................................................. 12

Derek T. Muller, “Natural Born” Disputes in

the 2016 Presidential Election, 85

Fordham L. Rev. 1097 (2016) ........................... 25

Derrick Bryson Taylor, George Floyd

Protests: A Timeline, N.Y. Times (Nov. 5,

2021) .................................................................. 10

F.E. Guerra-Pujol, Domestic Constitutional

Violence, 41 U. Ark. Little Rock L. Rev.

211 (2019) .......................................................... 12

The Federalist No. 51 (James Madison) ................ 20

Henry Halleck, Elements of International

Law and Laws of War (1866) ............................ 13

xii

OTHER AUTHORITIES [CONT’D]

James G. Wilson, Chaining the Leviathan:

The Unconstitutionality of Executing

Those Convicted of Treason, 45 U. Pitt.

L. Rev. 99 (1983)................................................ 11

James Madison, Notes of Debates in the

Federal Convention of 1787 (Adrienne

Koch ed., Ohio Univ. Press, 1966) (1840) ... 11, 23

Jason Mazzone, The Commandeerer in

Chief, 83 Notre Dame L. Rev. 265 (2007) ... 11, 14

John Bouvier, Bouvier’s Law Dictionary (6th

ed, 1856) ............................................................ 12

Jonathan Landay and Scott Malone,

Violence flares in Washington during

Trump inauguration, Reuters (Jan. 21,

2017) .................................................................. 10

Joseph Story, Commentaries on the

Constitution of the United States (4th ed.

1873) .................................................................. 11

Kurt Lash, The Meaning and Ambiguity of

Section Three of the Fourteenth

Amendment (Working Paper Dec. 28,

2023), https://bit.ly/3RfwVS8 .............................. 5

Laws of New Haven Colony 24 (1656)

(Hartford ed., 1858) ........................................... 11

xiii

OTHER AUTHORITIES [CONT’D]

Mark Graber, Section Three and (Not) Bills

of Attainder, Balkinization (Jan. 13,

2021), https://bit.ly/3vg4drM ............................ 21

Myles S. Lynch, Disloyalty &

Disqualification: Reconstructing Section

3 of the Fourteenth Amendment, 30 Wm.

& Mary Bill Rts. J. 153 (2021) .................... 11, 17

Robert J. Reinstein, Expulsion, Exclusion,

Disqualification, Impeachment, Pardons:

How They Fit Together, Lawfare (Feb.

11, 2011) ............................................................ 21

The Reconstruction Acts,

12 U.S. Op. Att’y Gen. 141 (1867)............... 12, 13

U.S. War Dep’t, Adjutant-Gen’s Off, General

Order No. 100: The Lieber Code,

Instructions for the Government of

Armies of the United States in the Field

§ X art. 151 (1863) ............................................. 13

William Baude & Michael Stokes Paulsen,

The Sweep and Force of Section Three,

172 U. Pa. L. Rev. (forthcoming 2024) ............. 21

1

INTRODUCTION AND INTERESTS

OF AMICI CURIAE

Occasionally, a case comes along that threatens to

upend our constitutional order. Perhaps a decision

erases Congress’s role in making some essential

decision. Or maybe a court has construed our Constitution in a way that endangers the President’s ability

to perform some critical work. Or perhaps a decision

invites chaos in our elections, undermining the ability

of voters to pick those who lead them. Or maybe a case

thrusts courts into places where they don’t belong.

Any one of these outcomes—standing alone—would be

unacceptable.

This case presents not just one of those troubling

outcomes, but all four. In declaring that former President Donald Trump is ineligible to run for President

in the coming election, the Colorado Supreme Court

has effectively reordered the roles of all the relevant

players in presidential elections. Section 3 of the

Fourteenth Amendment requires Congress to act

before an individual can be disqualified as an insurrectionist. But Colorado chose to act on its own. The

same section was proposed and ratified against a legal

and historical backdrop where Congress and the

President had decided what acts rise to that level. But

here again, Colorado chose to take that task up for

itself. And because of these choices, voters across the

country now face serious uncertainty and trouble in

picking their next president.

The Court must now act to fix the four-fold damage

the Colorado decision has done. Ultimately, the “Constitution’s design … leave[s] the selection of the

President to the people, through their legislatures,

and to the political sphere.” Bush v. Gore, 531 U.S. 98,

2

111 (2000) (per curiam). Yet the Colorado court’s decision ignores that design. And by doing so, the decision will lead many to question whether our elections

are genuine reflections of the national will or base

political games won through gamesmanship and lawfare. “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4

(2006) (per curiam). The Court can restore order and

integrity here. The Court can and should reverse.

SUMMARY OF ARGUMENT

I. The Fourteenth Amendment anticipates that

Congress will decide whether a particular person is

qualified to hold office under Section 3 (or at least

determine the process for making that decision). The

structure of the Constitution, relevant history, and

authority from this Court confirm as much. Congress

has not enacted any enabling legislation that would

apply here. Yet the Colorado court went ahead and

acted on its own. That choice was wrong.

II. In deciding that former President Trump

engaged in insurrection, the Colorado court fashioned

a definition of “insurrection” that is standardless and

vague. The best available evidence suggests that

insurrection equates with rebellion—a more demanding standard than the Colorado Court settled on. But

what constitutes insurrection under Section 3 is not a

question courts should answer at all. The Colorado

court should have stayed its hand.

III. The practical consequences of affirming the

Colorado decision confirm what the text already

shows: Colorado must have had it wrong. Altogether,

the Colorado decision undermines every branch of

3

government in deeply problematic ways: threatening

the power of a President, seizing choices that would

otherwise be left to Congress, forcing courts into

outcomes that will necessarily undermine their own

legitimacy, and imperiling the individual States’

rights to give their citizens’ votes actual meaning.

Faced with effects like these, the Court cannot affirm.

ARGUMENT

I.

Section 3 cannot be used to disqualify a

person from holding office unless Congress

first acts.

The Colorado court’s decision strikes a serious blow

to “the Constitution’s structural separation of

powers.” Freytag v. Comm’r, 501 U.S. 868, 873 (1991).

Only Congress can disqualify a person from holding

office under Section 3. At least to this point, Congress

has not seen fit to do so as to the events of January 6.

The Colorado decision overrides that choice.

The Fourteenth Amendment provides that “[n]o

person shall … hold any office … who, having

previously taken an oath … as an officer of the United

States … to support the Constitution of the United

States, shall have engaged in insurrection or rebellion

against the same.” U.S. Const. amend. XIV, § 3. But

it then stresses that “Congress shall have power to

enforce, by appropriate legislation, the provisions of

this article.” U.S. Const., amend. XIV, § 5. And it

specifies that “Congress … by a vote of two-thirds of

each House” may “remove [the] disability” imposed by

the Insurrection Clause. U.S. Const. amend. XIV, § 3.

Thus, the Fourteenth Amendment charges Congress

with deciding whether and how the Insurrection

Clause will be enforced. See Kerchner v. Obama, 669

4

F. Supp. 2d 477, 483 n.5 (D.N.J. 2009) (detailing

constitutional provisions that show qualifications of a

President are not to be resolved by courts).

Just months after the Fourteenth Amendment’s

ratification, Chief Justice Salmon P. Chase (while

riding circuit in Virginia) reached that very

conclusion. In re Griffin, 11 F. Cas. 7 (C.C.D. Va.

1869). Although the Colorado court refused to engage

with Griffin’s specific reasoning, it rejected it as

unpersuasive. See App. 52a–53a. But the Colorado

court should have read it again. Examining the text,

the Chief Justice in Griffin explained that the

Fourteenth Amendment’s “fifth section qualifies the

third.” 11 F. Cas. at 26. Section 5 “gives to congress

absolute control of the whole operation of the amendment,” and hence “legislation by congress is necessary

to give effect to [Section 3’s] prohibition.” Id.

Practical considerations, Chief Justice Chase

explained, “very clearly” underscored the need for

legislation. Griffin, 11 F. Cas. at 26. To give effect to

Section 3, “it must be ascertained what particular

individuals” are subject to a disability. Id. But “only

… congress” may “provide” the “proceedings, evidence,

decisions, and enforcements of decisions” required to

“ascertain[] what particular individuals are embraced

by the definition” and “ensure effective results.” Id.;

cf. Cawthorn v. Amalfi, 35 F.4th 245, 275–82 (4th Cir.

2022) (Richardson, J., concurring) (explaining why

only Congress may decide whether its own members

are disqualified under Section 3 of the Fourteenth

Amendment). No wonder, then, that Congress at one

point did pass (later-repealed) enabling legislation;

Congress, like Chief Justice Chase and those who

pushed the Fourteenth Amendment in the first place,

5

recognized that this portion of “[t]he Constitution

provides no means for enforcing itself.” Kurt Lash,

The Meaning and Ambiguity of Section Three of the

Fourteenth Amendment 46 (Working Paper Dec. 28,

2023), https://bit.ly/3RfwVS8 (quoting Sen. Lyman

Trumbull).

In requiring that “two-thirds of each House” agree

to remove the disability (and requiring Congress to

implement it in the first place), the Fourteenth

Amendment aligns with other means to determine a

President’s legal qualifications or otherwise bar him

from office. The Twenty-Fifth Amendment says, for

instance, that if the Vice President and certain officers

find that the President is unable to perform the duties

of his office, “Congress shall decide the issue [of

ability] … by two-thirds vote of both Houses.” U.S.

Const. amend. XXV. “[O]therwise, the President shall

resume the powers and duties of his office.” Id. An

unable President is one who lacks the ability or the

legal qualifications to discharge his office. See Grinols

v. Electoral Coll., No 2:12-CV-02997, 2013 WL

2294885, at *6 (E.D. Cal. May 23, 2013). So the

Twenty-Fifth Amendment gives Congress the

ultimate power to decide whether an official is legally

unqualified to serve. Likewise, Congress wields the

“sole power” to remove a president by impeachment

and conviction. U.S. Const. art I, §§ 2, 3. Conviction

again comes only upon a two-thirds vote from the

Senate. Id. § 3. And if the Electoral College doesn’t

give us an answer in an election, then the House and

the Senate once more decide—by a majority vote of a

two-thirds quorum—who will serve as President and

Vice President, respectively. U.S. Const. amend. XII;

see also U.S. Const. amend. XX (empowering Congress

to decide what happens when “neither a President

6

elect nor a Vice President elect shall have qualified”).

So the Constitution stresses that Congress is the last

arbiter of who can serve as President. Yet the

Colorado court ignored that instruction by declaring

that local officials and courts are to make that call

instead.

In reality, voters “are the best judges [of] who ought

to represent them,” Powell v. McCormack, 395 U.S.

486, 541 n.76 (1969) (quoting Robert Livingston as

quoted in 2 Debates on the Federal Constitution 292–

93 (J. Elliot ed. 1876)), and they should be the first to

decide whether former President Trump is legally

qualified to be reelected as President. Sovereignty,

after all, resides with the people. It “confers on [them]

… the right to choose freely their representatives to

the National Government.” U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 794 (1995). So “[a]rguments

concerning qualifications or lack thereof can be laid

before the voting public before the election,” as they

already have been. Robinson v. Bowen, 567 F. Supp.

2d 1144, 1147 (N.D. Cal. 2008). If the voters find

former President Trump qualified, and Congress

concurs, then the Constitution does not contemplate a

time for the judiciary to second-guess that call.

Rather, the Constitution gives Congress the sole and

final authority to determine whether the President

can continue to serve, as many courts have said. See,

e.g., Castro v. N.H. Sec’y of State, No. 23-CV-416-JL,

2023 WL 7110390, at *9 (D.N.H. Oct. 27, 2023), aff’d

sub nom. Castro v. Scanlan, 86 F.4th 947 (1st Cir.

2023); Taitz v. Democrat Party of Miss., No 3:12-CV280, 2015 WL 11017373, at *16 (S.D. Miss. Mar. 31,

2015); Grinols, 2013 WL 2294885, at *6; Voeltz v.

Obama, No. 2012-CA-02063, 2012 WL 4117478, at *5

(Fla. Cir. Ct. Sep. 6, 2012).

7

The court below concluded that Section 3 is selfexecuting largely by focusing on things that have been

said about other aspects of the Fourteenth Amendment (or other amendments entirely). In doing so, the

court ignored many cases that say the Fourteenth

Amendment is not self-executing. See, e.g., Ownbey v.

Morgan, 256 U.S. 94, 112 (1921) (“[I]t cannot rightly

be said that the Fourteenth Amendment furnishes a

universal and self-executing remedy.”); Ex parte

Virginia, 100 U.S. 339, 345 (1879) (“All of the

[Reconstruction] amendments derive much of their

force from this latter provision [in Section 5]. … Some

legislation is contemplated to make the amendments

fully effective.”); accord Cale v. City of Covington, 586

F.2d 311, 316 (4th Cir. 1978) (“[W]e believe that the

Congress and Supreme Court of the time were in

agreement that affirmative relief under the

amendment should come from Congress.”). And

anyway, courts need to examine each specific

constitutional provision on its own merits to decide

whether that provision is self-executing—not just

lump provisions adopted around the same time

together. Cf. Civil Rights Cases, 109 U.S. 3, 20 (1883)

(explaining that portions of the Fourteenth and

Fifteenth Amendment that “abolished slavery[] and

established universal freedom” were “self-executing,”

but other portions were not). A constitutional provision “is self-executing only so far as it is susceptible

of execution,” Davis v. Burke, 179 U.S. 399, 403 (1900),

and that’s a provision-specific question.

The Court should thus hold that Section 3 of the

Fourteenth Amendment is not self-executing. The

Colorado Supreme Court had no room to apply it

before Congress acted.

8

II.

Without more direction from Congress,

courts cannot say what constitutes “insurrection” under Section 3.

As it turns out, Section 3 does not supply a

“sufficient rule” for a court—federal or state—to apply.

Davis, 179 U.S. at 403. That’s a problem for any court

that purports to apply the “insurrection” provision

sans enacting legislation that provides that rule, as

“an unintelligible text is inoperative.” United States

v. Matchett, 837 F.3d 1118, 1128 (11th Cir. 2016)

(Pryor, J., respecting denial of rehearing en banc)

(quoting Antonin Scalia & Bryan Garner, Reading

Law 32-33 (2012)); see also Sessions v. Dimaya, 138 S.

Ct. 1204, 1243 n.2 (2018) (Thomas, J., dissenting). At

best, courts would be left to make base policy

judgments about what it means to engage in “insurrection.” But “considerations of policy [and] considerations of extreme magnitude” are “certainly entirely

incompetent to the examination and decision of a

Court of Justice.” Ware v. Hylton, 3 U.S. 199, 260

(1796); accord Japan Whaling Ass’n v. Am. Cetacean

Soc’y, 478 U.S. 221, 230 (1986). Altogether, then, the

Colorado court should have stayed its hand.

A. Section 3’s text provides little useful guidance

for judges. It applies to persons who “engaged in

insurrection or rebellion against the [Constitution],”

or who have “given aid or comfort to the enemies

thereof.” U.S. Const. amend. XIV, § 3. Evaluating

whether someone has given inappropriate and actionable aid to the enemy or whether an insurrection

occurred is the kind of question answered in war and

diplomacy. Cf. Stinson v. N.Y. Life Ins., 167 F.2d 233,

236 (D.C. Cir. 1948) (existence of a war is a political

question). But “[j]udges are not soldiers or diplomats.”

9

Lin v. United States, 539 F. Supp. 2d 173, 180 (D.D.C.

2008). And generally, “[t]he decision of all such questions [pertaining to war and insurrection] rests wholly

in the discretion of those to whom the substantial

powers involved are confided by the Constitution”—

Congress and, to a lesser extent, the President.

Stewart v. Kahn, 78 U.S. 493, 506 (1870); accord

Martin v. Mott, 25 U.S. 19, 30 (1827) (stating “that the

authority to decide whether the exigency [i.e.,

invasion] has arisen, belongs exclusively to the

President”). Judicial meddling in such matters “is a

guarantee of anarchy, and not of order.” Luther v.

Borden, 48 U.S. 1, 43 (1849).

The decision below offered a vague understanding

of insurrection: “a concerted and public use of force or

threat of force by a group of people to hinder or prevent

the U.S. government from taking the actions

necessary to accomplish the peaceful transfer of power

in this country.” App. 87a. The definition spawns

more questions than answers. What constitutes a

threat? Is a mere assemblage of people shouting

enough to constitute a threat of force, given that the

required force “need not involve bloodshed”? App. 86a.

What actions are necessary to peacefully transfer

power? If two people link arms across a sidewalk to

block a poll worker from entering a ballot-counting

site, does that “hinder” the transfer enough to

constitute an outright insurrection? Does incendiary

political rhetoric at a rally become insurrection if the

winning party deems that rhetoric insufficiently

supportive of the new regime? Have protesters

“hinder[ed] or prevent[ed] execution of the Constitution of the United States[,]” App. 85a, if their activities

“prompt[] the Secret Service to temporarily lock down

the” White House and cause the President to be

10

“moved to [an] underground bunker used … during

terrorist attacks”? Derrick Bryson Taylor, George

Floyd Protests: A Timeline, N.Y. Times (Nov. 5, 2021),

https://bit.ly/3S94h5L. And what about the “knots of

activists” who protested former President Trump’s

inauguration by throwing “rocks and bottles” at police

officers, smashing windows with “chunks of pavement

and baseball bats[,]” and setting fire to vehicles and

trash cans? Jonathan Landay and Scott Malone,

Violence flares in Washington during Trump

inauguration, Reuters (Jan. 21, 2017, 5:37 am),

https://bit.ly/3O08beF. Were those protesters—hundreds of whom were arrested—insurrectionists, too?

B. In truth, an “insurrection” is more serious than

the lower court’s definition supposes. Where the

Constitution uses the term “insurrection,” that term

appears alongside terms like “invasion” and

“rebellion.” For example, Article I empowers Congress

to use the militia to “execute” laws and to “suppress

Insurrections and repel Invasions.” U.S. Const. art. I,

§ 8. Similarly, Section 3 of the Fourteenth Amendment speaks of “insurrection” and “rebellion” together.

U.S. Const. amend. XIV, § 3. “Under the familiar

interpretive canon noscitur a sociis, a word is known

by the company it keeps.” Dubin v. United States, 599

U.S. 110, 124–25 (2023) (cleaned up) (quoting McDonnell v. United States, 579 U.S. 550, 568–69 (2016)).

Wise use of this canon prevents courts from assigning

“breadth” to a word that it was never intended have.

Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961).

Here, adjacent references to “Invasion[]” and “rebellion” suggest that an insurrection is “an effort to overthrow the government” and therefore “more serious

than” “mere[] opposition to the enforcement of the

laws.” Jason Mazzone, The Commandeerer in Chief,

11

83 Notre Dame L. Rev. 265, 336 n.450 (2007); see

Myles S. Lynch, Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment, 30

Wm. & Mary Bill Rts. J. 153, 167 (2021).

Other early authorities describe insurrections in

similar terms. On the spectrum of civil disturbance,

Blackstone places “insurrection” closer to a foreign

invasion than a riot. 4 William Blackstone, Commentaries on the Laws of England, *82, *420; cf. Kneedler

v. Lane, 45 Pa. 238, 291 (1863) (noting Lord Coke put

“invasion, insurrection,” and “rebellion” in the same

ballpark). Colonial-era laws often treated invasion,

insurrection, and rebellion similarly. See James G.

Wilson, Chaining the Leviathan: The Unconstitutionality of Executing Those Convicted of Treason, 45

U. Pitt. L. Rev. 99, 107 (1983) (quoting Laws of New

Haven Colony 24 (1656) (Hartford ed., 1858)); Joseph

Story, Commentaries on the Constitution of the United

States § 111 (4th ed. 1873) (noting New York put

“rebellion, insurrection, mutiny, and invasion” on a

similar plane). And during the Constitutional Convention debates, James Wilson noted that the major

reason for the republican-form-of-government clause

was to prevent “dangerous commotions, insurrections

and rebellions.” James Madison, Notes of Debates in

the Federal Convention of 1787 321 (Adrienne Koch

ed., Ohio Univ. Press, 1966) (1840); accord Story,

supra, § 490.

Early Congresses took a similar view. Section 1 of

the 1792 and 1795 Militia Acts says the President can

use the militia to repel a foreign “invasion” or an

“insurrection in any state” if the State asks, while

Section 2 says he can use the militia to stop the

obstruction of the execution of laws once normal civil

12

processes are overwhelmed. Act of February 28, 1795,

ch. 36, 1 Stat. 424, 10 U.S.C. § 332; cf. The Insurrection Act of 1807, ch. 39, Pub. L. No. 9-2, 2 Stat. 443

(differentiating between “suppressing an insurrection” and “causing the laws to be duly executed”).

This framing means “insurrection” and hindering the

execution of laws are different “type[s] of domestic

danger.” F.E. Guerra-Pujol, Domestic Constitutional

Violence, 41 U. Ark. Little Rock L. Rev. 211, 222

(2019).

Judges and others during the Civil War and Reconstruction Era treated “insurrection,” “rebellion,” and

“invasion” as on the same plane, too. See, e.g., Miller

v. United States, 78 U.S. 268, 308 (1870) (discussing

federal laws using these terms seemingly equivalently); United States v. Hammond, 26 F. Cas 99,

101 (C.C.D. La. 1875) (discussing a state law regarding grand jury service). The primary Reconstructionera legal dictionary—echoing many of the sources

above—defined “insurrection” as a “rebellion” “against

the government”; and “rebellion” primarily meant

“taking up arms traitorously against the government.”

John Bouvier, Bouvier’s Law Dictionary (6th ed. 1856),

available at https://bit.ly/3uzlbAP. In the Fourteenth

Amendment floor debates, legislators freely swapped

the terms. Cong. Globe, 39th Cong., 1st Sess. 2898,

2900 (1866). And a contemporaneous Attorney General opinion interpreting Section 3 of the Fourteenth

Amendment saw no meaningful distinction either,

constantly equating them and even defining them

identically as a “domestic war.” The Reconstruction

Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867).

Indeed, throughout the 19th century, “rebellion”

and “insurrection” were often deemed “synon[y]mous.”

13

State v. McDonald, 4 Port. 449, 456 (Ala. 1837); see

Spruill v. N.C. Mut. Life Ins. Co., 46 N.C. 126, 127–28

(1853) (describing insurrection as a “seditious rising

against the government …; a rebellion; a revolt”); Ex

parte Milligan, 71 U.S. 2, 142 (1866) (Chase, C.J.,

concurring) (equating “insurrection” and “invasion”);

Davis, 7 F. Cas. at 96 (treating “insurrection” and

“rebellion” interchangeably).

Insurrections, like

rebellions and revolutions, were understood to “come

under the general head of civil wars.” Martin v.

Hortin, 64 Ky. 629, 633 (1867) (quoting Henry Halleck,

Elements of International Law and Laws of War 153

(1866)). Insurrections were thought to require “a

considerable military force” to be put down. In re

Charge to Grand Jury, 62 F. 828, 830 (N.D. Ill. 1894)

(cited at App. 86a). They were considered “war

between the legitimate government of a country and

portions of provinces of the same who seek to throw off

their allegiance to it and set up a government of their

own.” U.S. War Dep’t, Adjutant-Gen.’s Off., General

Order No. 100: The Lieber Code, Instructions for the

Government of Armies of the United States in the Field

§ X art. 151 (1863). So like a rebellion, insurrection

entails an attempt to outright overthrow the

government. Even many of the more modern (and

unhelpful) court decisions preferred by the Colorado

Supreme Court recognize that much. See, e.g., Pan

Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 505

F.2d 989, 1017 (2d Cir. 1974) (insurrection contemplates a “violent uprising by a group or movement

… for the specific purpose of overthrowing the

constituted government and seizing its powers”);

accord Younis Bros. & Co. v. CIGNA Worldwide Ins.

Co., 91 F.3d 13, 14 (3d Cir. 1996); Home Ins. Co. of N.Y.

v. Davila, 212 F.2d 731, 736 (1st Cir. 1954).

14

These descriptions are consistent with four of the

pre-Civil War insurrections that would have been top

of mind for the Fourteenth Amendment’s framers:

Shay’s Rebellion (1786–1787), the Whiskey Rebellion

(1794), Fries’s Rebellion (1799–1800), and Dorr’s

Rebellion (1841–1842). These insurrection-rebellions

lasted several months; involved extended violence

that shut down courts and revenue collection in local

areas; targeted particular local officials; involved

militarily arrayed participants; and saw either combat

or the election of a rival government. See United

States v. Mitchell, 2 U.S. 348, 355 (C.C.D. Pa. 1795);

Case of Fries, 9 F. Cas. 924, 933 (C.C.D. Pa. 1800);

Milligan, 71 U.S. at 129. All were far more serious

than the lower court’s definition suggests.

C. Although it’s clear enough that the Colorado

court’s definition is the wrong one, that’s not to say

that a court would be equipped to provide the right

one. “Evidence from the Founding era is not entirely

clear” about when a riot becomes insurrection.

Mazzone, supra, at 336 n.450; see B. Mitchell Simpson,

Treason and Terror: A Toxic Brew, 23 Roger Williams

U.L. Rev. 1, 24 (2018) (saying the “distinction between

insurrection and riot” can be “narrow”). Since then,

things have not become any clearer. Cf. Herndon v.

Lowry, 301 U.S. 242, 261 (1937) (finding that a state

statute purporting to punish an attempt to incite an

insurrection did “not furnish a sufficiently ascertainable standard of guilt”). And the Colorado court

concluded that it could define “insurrection” just

because some other modern-day courts have occasionally found a definition for the word in latter-day

dictionaries in distinguishable contexts. App. 60a. A

hundred years ago, even the Colorado Supreme Court

gave a different answer. See In re Moyer, 85 P. 190,

15

192 (Colo. 1904) (holding that the court could not

review the governor’s determination that an insurrection had occurred). But the Colorado Supreme

Court of today preferred a rough-and-ready form of

constitutional construction that this Court should not

endorse.

The Constitution provides the solution to the chaos

that would accompany the Colorado court’s approach.

It specifies that a politically accountable body should

publicly declare whether an ongoing disturbance of

the peace constitutes a war, rebellion, or insurrection,

precisely because the lines between them are not

always clear. Across the board, the Constitution

entrusts to Congress the power “[t]o declare War,”

“call[] forth the Militia to suppress Insurrections and

repel Invasions,” and of course “enforce” Section 3 of

the Fourteenth Amendment “by appropriate legislation.” U.S. Const. art. I, §§ 8, 12; U.S. Const, amend.

XIV, § 5.

Using legislative and political processes to decide

which disturbances rise to the level of war, rebellion,

or insurrection would also have been familiar to those

who adopted the Fourteenth Amendment. As early as

1792, Congress required the President to issue a

proclamation before exercising authority to use the

Militia to “suppress Insurrections and repel Invasions.” U.S. Const. art. I, § 8, cl. 15. The 1792 Militia

Act authorized the President to “call forth” the militia

only if he first issued a “proclamation, command[ing]

[the] insurgents to disperse, and retire peaceably.”

Act of May 2, 1792, ch. 28, §§ 1–3, 1 Stat. 264; cf. N.Y.

Code of Crim. Proc., ch. 4, § 97 (Weed, Parsons & Co.

1850) (requiring published proclamation that a county

is “in a state of insurrection”). The Militia Act of 1795

16

included the same proclamation requirement, Act of

February 28, 1795, § 3—as does federal law today, see

10 U.S.C. § 254; see also Mott, 25 U.S. at 31 (holding

that court could not question a president’s proclamation of insurrection under the 1795 Act).

The framers of the Fourteenth Amendment knew

these processes well. The President issued many

proclamations during the Civil War declaring it to be

an “insurrection against the United States.” Andrew

Johnson, U.S. President, Message Proclaiming End to

Insurrection in the United States (Aug. 20, 1866)

(collecting examples). In 1861, for example, Congress

authorized a proclamation to be issued “when

insurgents … failed to disperse by the time directed by

the President” and the insurgents claimed to be acting

under State authority. Act of July 13, 1861, ch. 3, § 5,

12 Stat. 255; see also Act of July 29, 1861, ch. 25, 12

Stat. 282 (amending the Militia Act of 1795 and

reimposing a proclamation requirement). No one

therefore had to guess whether the Civil War was an

insurrection; an authoritative, public process for proclaiming it an insurrection gave the definite answer.

Cf. United States v. Greathouse, 26 F. Cas. 18, 23

(C.C.N.D. Cal. 1863) (finding that “public notoriety,

the proclamations of the president, and the acts of

congress” were “sufficient” to prove “the existence of a

rebellion against the United States”). But Congress

did not exercise any of those powers when it came to

the events of January 6, and—beyond the Civil War—

Congress has not endeavored to define what might

constitute an “insurrection” more generally. “[W]hen

called on to construe one of the Constitution’s

underdeterminate phrases, an originalist judge”—or

any judge, really—“should ask …, ‘what is my role?’”

Amul R. Thapar & Joe Masterman, Fidelity and

17

Construction, 129 Yale L.J. 774, 807 (2020). Here, the

answer must be to wait.

If Congress or the President were to authoritatively

give persons notice that continuing to take part in a

serious, widespread disturbance constitutes an

insurrection (as they did during and after the Civil

War), then courts perhaps would have a manageable

standard to apply. See Lynch, supra, at 214–15

(stating that disqualification requires certain acts

“after the President issues a Proclamation pursuant to

the Insurrection Act”). But without a proclamation,

courts—the Colorado Supreme Court included—are

ill-equipped to second-guess the judgments of

politicians, soldiers, and diplomats about how to label

politically charged conflicts. And when it comes to the

events of January 6, certainly, the Colorado court had

no legal standard to apply.

III. Allowing state courts to apply Section 3 to

Presidents without congressional action

would damage our system of government.

In the end, the practical results of affirming the

Colorado court confirm that its construction of Section

3 cannot be right. From the very beginning, this Court

has preferred constructions that do not render the

government’s operations “difficult, hazardous and

expensive.” M’Culloch v. Maryland, 17 U.S. 316, 408

(1819). Rather, where the text allows, the Court works

to avoid “rendering the government incompetent to its

great objects.” Id. at 418; see also, e.g., Martin v.

Hunter’s Lessee, 14 U.S. 304, 326 (1816) (“[T]his

instrument, like every other grant, is to have a

reasonable construction, according to the import of its

terms.”). And here, allowing state courts to do what

the Colorado court did would undermine most every

18

part of our constitutional system. “[T]he framers of

the constitution[al] [amendment] could never have

intended to insert in [the constitution], a provision so

unnecessary, so mischievous, and so repugnant to its

general spirit.” Trs. of Dartmouth Coll. v. Woodward,

17 U.S. 518, 628 (1819).

A. Take Congress. By now, it should be clear that

the Colorado decision undermines Congress’s specific

power to disqualify by leaping ahead without enabling

legislation. See pp. 3–8, supra. Relatedly, the decision

undermines Congress’s ability to lift a disqualification

under Section 3, as Congress never had the chance to

make that call before Colorado struck former

President Trump from the ballot. Now, Congress

must decide whether the actions of one State will

compel it to take that step. Cf. Colegrove v. Green, 328

U.S. 549, 565 (1946) (Rutledge, J., concurring)

(worrying that a court decision would “pitch[] this

Court into delicate relation to the functions of state

officials and Congress, compelling them to take action

which heretofore they have declined to take voluntarily or to accept the [court-imposed] alternative”).

None of that fits well with the primary role for

Congress that the Constitution contemplates.

But more generally, the Colorado decision intrudes

into a realm that Congress has traditionally controlled. To be sure, States can regulate the “manner”

of conducting presidential elections. U.S. Const. art.

I, § 4. But “the Framers understood the Elections

Clause as a grant of authority to issue procedural

regulations, and not as a source of power to dictate

electoral outcomes.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833–34 (1995). Most often, then, the

choice of how to regulate a presidential election

19

beyond the nuts and bolts “presents a question

primarily addressed to the judgment of Congress.”

Burroughs v. United States, 290 U.S. 534, 547 (1934).

After all, the Framers conferred upon “the Federal

Government” “the final control of the elections of its

own officers,” Oregon v. Mitchell, 400 U.S. 112, 134

(1970), and Congress (perhaps along with the

Electoral College) is the body through which that

federal power manifests. Even state courts had recognized before that making these kinds of calls can

therefore “interfere with the constitutional authority

of the Electoral College and Congress.” Lamb v.

Obama, No. S-15155, 2014 WL 1016308, at *2 (Alaska

Mar. 12, 2014); see also, e.g., Strunk v. N.Y. State Bd.

of Elections, No. 6500/11, 2012 WL 1205117, at *12

(N.Y. Sup. Ct. Apr. 11, 2012) (same).

And don’t forget impeachment. The power to

accuse a President of an impeachable offense resides

solely in the House of Representatives, U.S. Const. art.

I, § 2, cl. 5, while the power to remove a President

resides solely in the Senate, id., art. I, § 3, cl. 6.

Congress applied these powers to former President

Trump, as the House impeached him twice. But the

Senate acquitted him both times, even when political

opponents accused him of fomenting insurrection,

much as the lower court held here. See 166 Cong. Rec.

S938 (daily ed. Feb. 5, 2020); 167 Cong. Rec. S733

(daily ed. Feb. 13, 2021). So Colorado has effectively

declared that Congress was wrong—particularly in

the latter impeachment proceeding. Congress thus

loses its role as the exclusive arbiter of that question.

Contra Nixon v. United States, 506 U.S. 224, 238

(1993) (holding impeachment is the exclusive domain

of Congress).

20

B. Now consider how decisions like this one would

affect the Presidency. The President is one of only two

“elected officials who represent all the voters in the

Nation.” Anderson v. Celebrezze, 460 U.S. 780, 795

(1983). But if this decision stands, then every

President will now have to constantly look over his

shoulder, wondering how any politically charged

decision or even campaign-related rhetoric might play

out in each of the 50 States. Imagine, for instance,

that a decision to withdraw from war abroad is widely

opposed by the population of a given State. Could

litigants now sue the President in that State, saying

that his war-time decisions are so egregious that they

constitute “aid or comfort” to our enemies, U.S. Const.

amend. XIV, § 3, and have the President disqualified?

Or could litigants attack a President for opposing

some act of Congress too vehemently, refusing to

implement it, or voicing support for those who end up

using violence in response to political action, even

though his “[a]mbition” is supposed to “counteract”

Congress’s? The Federalist No. 51 (James Madison).

Once these kinds of stories might have seemed laughably implausible. Yet with a fluid definition of insurrection now on the table (remember that the Colorado

court refused to give an “all-encompassing” definition

of the word, App. 86a), and some state actors evidently

anxious to make use of it, the unimaginable is

becoming disappointingly more real. Our supposedly

national representative could thus become subject to

constant second (and fiftieth) guesses.

Think, too, about how this decision will affect

Presidents of days gone by. If the Colorado decision is

correct, then some have argued that former President

Trump would be immediately disqualified the moment

he purportedly engaged in insurrection on January 6,

21

2021. See, e.g., Mark Graber, Section Three and (Not)

Bills of Attainder, Balkinization (Jan. 13, 2021),

https://bit.ly/3vg4drM. Under this view, “the actions

that [former President Trump] took between Jan. 7

and Jan. 20—including the pardons he issued and the

bills he signed into law”—would not be constitutionally valid.

Robert J. Reinstein, Expulsion,

Exclusion, Disqualification, Impeachment, Pardons:

How They Fit Together, Lawfare (Feb. 11, 2011),

https://bit.ly/47nxYo0; see also William Baude &

Michael Stokes Paulsen, The Sweep and Force of

Section Three, 172 U. Pa. L. Rev. (forthcoming 2024)

(manuscript

at

29),

https://ssrn.com/abstract=

4532751 (“Those who cannot constitutionally hold

office cannot constitutionally exercise government

power, so the subjects of that power can challenge

their acts as ultra vires.”). Thanks to Colorado, then,

some might now try to say that America was without

a President for two full weeks. And nothing is to say

that this problem of “ultra vires” acts would be

confined to January 6.

C. Courts are not spared the ill effects of this

decision, either. State and federal courts alike have

traditionally been justifiably cautious about intervening in “the most intensely partisan aspects of American political life.” Rucho v. Common Cause, 139 S. Ct.

2484, 2507 (2019). For good reason. Court involvement in pure politics can bring “delay and uncertainty

… to the political process … [and] partisan enmity …

upon the courts.” Vieth v. Jubelirer, 541 U.S. 267, 301

(2004) (plurality op.). Yet this case involves perhaps

the most “intensely partisan” event one can imagine—

a presidential election. And so a real danger exists

that the “intelligent man on the street” would say it’s

“a bunch of baloney” to think that a dispassionate

22

application of the law resulted in a politically charged

candidate being disqualified. Tr. of Oral Arg. at 37–

38, Gill v. Whitford, 138 S. Ct. 1916 (2018) (No. 161161). Rather, the smart observer will suppose that

“[i]t must be because the [relevant] [c]ourt preferred

the Democrats over the Republicans,” or vice versa. Id.

This direct blow to the legitimacy and perception of

courts has real effects. Judicial “authority”—and

every court’s authority—“ultimately rests on sustained public confidence in its moral sanction.” Baker

v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J.,

dissenting). As far back as de Tocqueville, it was

understood that courts hold only “a power of opinion”

that drops if away if the public “scorn[s]” its

pronouncements. Alexis de Tocqueville, Democracy in

America 142 (Harvey C. Mansfield & Delba Winthrop

eds. & trans., Univ. of Chi. Press 2000) (1835). If the

public begins to get the sense that courts have moved

beyond a “properly judicial role,” then that scorn will

no doubt begin to build. Town of Chester v. Laroe

Ests., Inc., 581 U.S. 433, 438 (2017).

And indeed, if courts take on Section 3 cases like

these—acting without direction from Congress, and

lashing out against the President himself—then it

seems almost inevitable that they will come to be

viewed as political operators unworthy of the special

respect that gives force to courts’ decisions. Even more

so if they employ routes that don’t look like ordinary

due process, as seemed to be the case here. See App.

154a–60a (Samour, J., dissenting) (noting how the

Colorado trial court allowed extremely limited

discovery, used rapid proceedings that nevertheless

blew statutory deadlines, adopted loose evidentiary

standards, and did not involve a jury). These problems

23

no doubt help explain why James Madison thought it

was “out of the question” that the federal judiciary

would be called upon to decide the Presidency, let

alone 50 state systems. See James Madison, Notes of

Debates in the Federal Convention of 1787 363

(Adrienne Koch ed., Ohio Univ Press, 1966) (1840).

D. And lastly, greenlighting standardless Section

3 suits like this one will harm the States. Yes, the

States here most often come before this Court as

champions of federalism. And one might generously

call the Colorado court’s free-for-all approach a spin on

federalism. But even aside from the text of the

Fourteenth Amendment (which must ultimately

prevail no matter how fond one might be of

federalism), the States here see real harms to their

own interests by heading down this path.

Most obviously, the States have an interest in

seeing our electoral system work effectively. “[E]lections for presidential and vice-presidential electors”

are, after all, “national elections.” Oregon v. Mitchell,

400 U.S. 112, 117–18 (1970). As to primaries in

particular, “States themselves have no constitutionally mandated role in” selecting “Presidential and

Vice-Presidential candidates” at all.

Cousins v.

Wigoda, 419 U.S. 477, 489–90 (1975). So “in the

context of a Presidential election, state-imposed

restrictions implicate a uniquely important national

interest.” Anderson, 460 U.S. at 794–95 (footnote

omitted). Those interests extend beyond a State’s

“own borders.” Id. at 795. And no State is an electoral

island because “the impact of the votes cast in each

State is affected by the votes cast”—or, in this case,

not cast—“in other States.”

Id.

So state-led

disqualification decisions create cross-border harms.

24

What’s more, the Colorado court’s decision to dilute

former President Trump’s votes in the upcoming

election will throw the 2024 presidential election into

chaos. Yet courts are supposed to give “a due regard

for the public interest in orderly elections.” Benisek v.

Lamone, 138 S. Ct. 1942, 1944 (2018). “[S]ome sort of

order, rather than chaos, is to accompany the

democratic process.” Cook v. Gralike, 531 U.S. 510,

524 (2001). Nothing about throwing open the doors to

ad hoc, state-by-state Section 3 disqualifications

bespeaks order. Quite the opposite: “Court orders

affecting elections, especially conflicting orders, can

themselves result in voter confusion and consequent

incentive to remain away from the polls. As an

election draws closer, that risk will increase.” Purcell,

549 U.S. at 4–5; see Keyes v. Bowen, 117 Cal. Rptr. 3d

207, 215 (Cal. Ct. App. 2010) (warning that undue

state interference in similar qualifications cases can

result in “conflicting rulings and delayed transition of

power in derogation of statutory and constitutional

deadlines”).

If the Court endorses what happened in Colorado,

then the chaos can only be expected to worsen. No

doubt a political tit-for-tat will ensue, in which

competing parties will find new avenues to disqualify

their opponents. And elections could then come down

to small variations among state elections laws and the

political composition of state administrations. In

short, indulging challenges of this sort and in this

posture will “sacrifice the political stability of the

system” of the Nation “with profound consequences for

the entire citizenry.” Storer v. Brown, 415 U.S. 724,

736 (1974). At a minimum, it will “expose the political

life of the country to months, or perhaps years, of

chaos.” Nixon, 506 U.S. at 236. But “[w]hat in this

25

gamesmanship and chaos c[ould] we be proud of?”

Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599,

601 (2020) (Gorsuch, J., concurring).

It also seems odd to say that Colorado rightly seized

this constitutional power when so many States have

said otherwise. Even beyond Section 3, state “election

administrators … [have] frequently expressed

reluctance that they should be the ones who handled

such disputes.” Derek T. Muller, “Natural Born”

Disputes in the 2016 Presidential Election, 85

Fordham L. Rev. 1097, 1110 (2016). And even when it

comes to Section 3 and January 6, only two States

have seen fit to try to disqualify former President

Trump. That general reluctance and restraint should

serve as a strong signal that the answers should really

come from somewhere else.

* * * *

All these “strange, far-reaching, and injurious

results” from the Colorado court’s approach confirm

what the text of Section 3 already says: the court never

should have held as it did. Pac. States Tel. & Tel. Co.

v. Oregon, 223 U.S. 118, 142 (1912). Affirming the

Colorado court will only invite more judicial meddling

and more loss of confidence in the judiciary. To restore

public confidence, the only way forward is to reverse.

CONCLUSION

The Court should reverse.

26

Respectfully submitted.

THEODORE E. ROKITA

Attorney General

PATRICK MORRISEY

Attorney General

JAMES A. BARTA

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Principal Deputy Solicitor

General

MELINDA R. HOLMES

Deputy Attorney

General

DAVID E. GILBERT

Deputy Attorney General

OFFICE OF THE

INDIANA

ATTORNEY GENERAL

IGC South, Fifth Floor

302 Washington Street

Indianapolis, IN 46204

James.Barta@atg.in.gov

(317) 232-0709

Counsel for Amicus

Curiae State of Indiana

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

michael.r.williams@wvago.gov

(304) 558-2021

Counsel for Amicus Curiae

State of West Virginia

27

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

LYNN FITCH

Attorney General

State of Mississippi

TIM GRIFFIN

Attorney General

State of Arkansas

ANDREW BAILEY

Attorney General

State of Missouri

ASHLEY MOODY

Attorney General

State of Florida

AUSTIN KNUDSEN

Attorney General

State of Montana

CHRISTOPHER M. CARR

Attorney General

State of Georgia

MICHAEL T. HILGERS

Attorney General

State of Nebraska

RAÚL LABRADOR

Attorney General

State of Idaho

JOHN M. FORMELLA

Attorney General

State of New

Hampshire

BRENNA BIRD

Attorney General

State of Iowa

DREW H. WRIGLEY

Attorney General

State of North Dakota

RUSSELL COLEMAN

Attorney General

Commonwealth of

Kentucky

DAVID A. YOST

Attorney General

State of Ohio

LIZ MURRILL

Attorney General

State of Louisiana

GENTNER DRUMMOND

Attorney General

State of Oklahoma

28

ALAN WILSON

Attorney General

State of South Carolina

WARREN PETERSEN

President of the Senate

State of Arizona

MARTY JACKLEY

Attorney General

State of South Dakota

By counsel:

Rusty D. Crandell

Majority General

Counsel

Arizona State Senate

1700 W. Washington St.

Phoenix, Arizona 85007

rcrandell@azleg.gov

(602) 926-3137

JONATHAN SKRMETTI

Attorney General and

Reporter

State of Tennessee

KEN PAXTON

Attorney General

State of Texas

SEAN D. REYES

Attorney General

State of Utah

JASON MIYARES

Attorney General

Commonwealth of

Virginia

BRIDGET HILL

Attorney General

State of Wyoming

BEN TOMA

Speaker of the House of

Representatives

State of Arizona

By counsel:

Linley Wilson

Majority General

Counsel

Arizona House of

Representatives

1700 W. Washington St.

Phoenix, Arizona 85007

LWilson@azleg.gov

(602) 926-5418

29

TIMOTHY K. MOORE

Speaker of the House of

Representatives

State of North Carolina

PHILIP E. BERGER

President Pro Tempore

of the Senate

State of North Carolina

By counsel:

Sam M. Hayes

General Counsel

Office of the Speaker

North Carolina House

of Representatives

16 West Jones Street

Raleigh, NC 27601

sam.hayes@ncleg.gov

(919) 733-4086